Environmental Job Market Trends in Canada 2014-2017

ECO Canada recently issued an Environmental Job Market Trends Report that shows that the environmental job market rebounded in Canada last year with 22.7 thousand job ads, reflecting a 9% increase from 2016 levels.  On the other hand, total job ads peaked in 2014 at 1.30 million, decreased to 1.07 million by 2016 (a drop of 18%) and slightly dipped in 2017 with 1.05 million job ads, reflecting a 2% decline.

  • Employment increases within key industries that employ a number of environmental workers, which includes professional, scientific and technical services;
  • Resurgence in goods-producing sectors such as manufacturing, construction, and energy; and
  • Provincial governments implementing climate change plans.

The report states that Ontario, Alberta and British Columbia are the provinces that have consistently shown the most demand for environmental professionals between 2014 and 2017.

Managers in financial and business services had the highest job ad growth rate with close to 30%, from 1,090 job ads in 2016 to 1,410 in 2017.  Agriculture/horticultural workers, technical inspectors/regulatory officers and engineers, with an environmental function attached to the roles, remained the most sought-after positions with 2,870, 3,020 and 2,110 job ads in 2017 respectively.

ECO Canada develops programs that help individuals build meaningful environmental careers, provides employers with resources to find and keep the best environmental practitioners and informs educators and governments of employment trends to ensure the ongoing prosperity of Canada’s growing environmental sector.

 

The National Brownfield Summit – A Brief Recap

By David Nguyen – Staff Writer

This year’s conference is about charting the future of the CBN. (Image from CBN).

On June 13, 2018, The Canadian Brownfields Network (CBN) held their 8th annual conference, taking the form of a National Brownfield Summit. This year also marks the 15th anniversary of the 2003 National Roundtable on the Environment and the Economy report, and the cornerstone of this year’s summit was to revisit the original report and reflect on the progress since then, as well as the challenges that still need to be addressed.

Keynote Speaker

After an introduction by president Grant Walsom, the conference began with the keynote speaker Marlene Coffey, Executive Director of the Ontario Non-Profit Housing Association, who spoke about previous examples of the developments on Brownfields, including housing developed on a Goodyear Tires site, or the Vancouver Olympic village or Toronto Pan American housing facilities.

She spoke of Toronto’s current housing crisis and how costs have outpaced income for many renters due to the market response to the economic growth in the Greater Toronto Area, as well as Hamilton and Waterloo. She also spoke about how condominium development is preferred due to the pre-selling and reselling markets providing profit and equity for the developer before and during construction.  Contrast that to rental housing, where developers of must put up front all costs of development before any profits.

The city of Toronto’s plan to address these concerns include building 69 000 affordable rental units within 10 years, extending the life of 260 000 units, as well as income support for 311 000 households. In addition, the federal government launched the National Housing Strategy in 2017, with $40 billion over 10 years to support affordable housing initiatives across Canada. Coffey reports that municipality participation is key to obtaining funding for affordable housing, and a role that can be played is to donate available land for development.

Current Affairs

A series of professional presentations followed, discussing various emerging investigation and remediation techniques. These included Dr. Barbara A. Zeeb discussing the use of phytotechnologies to remediate brownfield sites. She compared the traditional method of soil excavation, transport, and disposal to phytoextraction – the use of plants to remove the contaminant while leaving the soil intact and reusable, such as using natural and native species to remove organics like DDT. Other benefits include its cost effectiveness and the uptake of greenhouse gasses, but technologies are site specific, and can take years to remediate fully – highlighting the role that phytoremediation can play alongside traditional remediation methods.

A legal update with lawyer John Georgakopoulos provided an overview of legal cases currently before the courts, with implications for the brownfield development. His presentation compared cases of regulatory liability to civil liability and about managing environmental liabilities through exercising due diligence. He noted, however, that due diligence plays a bigger role in regulatory liability and a smaller role in civil liability, and he encouraged environmental liability protections like environmental insurance and regulatory liability protection.

Cross-Country Check-Up Panelists Kerri Skelly (front left), Lisa Fairweather (centre) and Krista Barfoot (left) with President D. Grant Walsom (back). (Photo from the CBN).

A cross-country checkup with panelists from across Canada discussed the changing landscape for excess soils. Speakers include Krista Barfoot (of Jacobs Engineering Group) speaking about Ontario’s proposed guidelines on excess soils, such as the emphasis on the use of excess soil management plans and addressing issues such as situations where there is no beneficial reuse site. Lisa Fairweather spoke about the Alberta’s Remediation Certificate and its impacts on reducing barriers to brownfields development; and Kerri Skelly spoke about British Columbia’s new excess soil regulations and its goals of clarifying rules for businesses moving soil and increasing the opportunity for soil reuse.

Angus Ross (left) with Grant Walsom. (Photo from the CBN).

Before breaking up into working groups, the final presentations reviewed the current state of brownfield development in Canada. Angus Ross, who chaired the original task force, discussed how the National Strategy succeeded in addressing liability issues, financial funding, and building public awareness of brownfields. A major recommendation was the formation of a national brownfield network, which led to the CBN.

Ryerson PhD student Reanne Ridsdale presented findings on a survey of about 6,500 brownfield remediated sites across Canada, where 80 participants were polled, including environmental consultants, government officials, lawyers and financiers.

Reanne Ridsdale presenting the results of the CBN/Ryerson survey. (Photo from the Daily Commercial News).

Following was a presentation by a Ryerson student planning studio group compared brownfield policies of each province, based on criteria such as clear policies, an accessible brownfield site inventory, and incentives for development. Ontario, Quebec, and British Columbia were considered to be very progressive in their policies towards brownfield development, but improvements could still be made across Canada in terms of standardizing rules and policies and producing developer friendly guidelines for site remediation. Then PhD student Reanne Ridsdale talked about the results of the CBN/Ryerson survey of the brownfield community’s view of progress in the last 15 years. Respondents indicated that the CBN is too eastern focused on central and eastern Canada, with little presence in the Prairies, as well as being too research-focussed and not conducting enough outreach.

Charting the Future

The day was capped off with breakout discussion groups to discuss “challenge questions” and allow attendees to contribute ideas to future CBN activities to advance brownfield developments. Challenge question topics included the roles of the federal, provincial, and municipal governments, the development of a brownfield inventory, innovations in brownfield developments, and the societal impacts of brownfield development on communities. One of the key discussion points was for the CBN to promote a “Put Brownfields First” mentality, particularly within governments. This includes developing a financing model/regime for governments to support brownfield developments, particularly in smaller municipalities, as well as to harmonize rules and guidelines for brownfield development. In addition, the CBN should facilitate the education of brownfields to local communities and involve land owners and developers in the process of implementing brownfield policies.

The National Brownfield Summit provided an amazing opportunity for members and attendees to provide input towards the goals of the CBN. More information about the Canadian Brownfields Network can be found at https://canadianbrownfieldsnetwork.ca/ including the summit program and information about the presenters.

New Technology on Track to Vitalize Confined Space HazMat Training

by Steven Pike , Argon Electronics

Teams operating in confined spaces within hazardous industrial buildings or process facilities understand all too well the importance of adhering to strict health and safety regulations.

The hazards that confined spaces present can be physical or atmospheric in nature – from the risks of asphyxiation or entrapment to exposure to extremes of temperature or the release of toxic chemicals.

Confined Space Entry

According to the Census of Fatal Occupational Injuries, on average two people die in the US every day as the result of incidents that take place within confined spaces.

In many cases too, it is not just the victim who is at risk, but the rescuer or first responder who may be unaware of the hazard they are about to encounter.

Directives such as the Occupational Safety and Health Administration (OSHA), the Control of Major Accident Hazards Regulations (COMAH), the Dangerous Substances and Explosive Atmospheres Regulations (DSEAR), Atex and many others all have a pivotal role to play in ensuring safety.

But despite the emphasis on prevention, any potentially harmful chemical release, and specifically one that occurs within the context of a confined space, will require personnel who are skilled and confident to handle a variety of complex challenges.

With these challenges in mind, a new app-based multigas simulator technology, specifically designed for use in confined space settings, is scheduled for release in late summer 2018.

And the new system looks set to deliver an enhanced level of realism for industrial HazMat training scenarios.

Applying CWA Technology to Industrial HazMat Training

The use of simulation technology for chemical warfare agent (CWA) training is already well established, with intelligent, computer-based training aids such as Argon Electronics’ PlumeSIM and PlumeSIM-SMART systems currently in use by military forces around the world.

The launch of PlumeSIM in 2008 provided CWA and CBRN instructors with a simulation package that enabled them to use their laptops, in conjunction with a map or images, to plan a diverse range of field and table-top exercises.

The type of substance, whether a single or multiple source and an array of environmental conditions (such as wind direction and speed) could all be easily configured. And the innovative technology enabled whole exercises to be recorded for after action review (AAR) and future contingency planning.

In 2016 came the introduction of PlumeSIM-SMART – which offered similar capabilities to PlumeSIM but replaced the use of simulator devices in the field with the simplicity of a mobile phone.

The ability to transform a mobile phone into a look-alike gas detector was to prove especially practical (and budget-friendly) for high-hazard industrial organizations and municipal responders.

And using mobiles offered some additional and unexpected benefits in that it enabled field exercises to take place in any location.

Realistic Multigas Training

The newest addition to Argon’s simulation technology portfolio has been devised for specific use within the training environs of confined spaces and multi-level buildings.

The device will offer HazMat instructors the flexibility to simulate specific levels and concentrations of gases, whether these be in the form of a gas escape or a dangerous device (or devices) concealed within a building.

It will also be highly configurable to enable instructors to select the use of either single or multigas sensors within their training scenarios.

The hardware will be identical to that currently available for CWA training and toxic industrial response training. It has also been configured to interact with existing hand-held gas detection simulators, such as PlumeSIM-SMART, to provide an enhanced level of realism and a more focused training experience.

Simulation sources will be able to be set to emit a signal that replicates the conditions of a particular substance, a low level or oxygen or an explosive atmosphere.

And as students move around the training environment, their display readings will adjust accordingly to simulate an event such as a breached alarm.

The latest detector also promises to overcome the issues posed by communications interference within buildings where GPS technology can often be limited.

Working in confined spaces within industrial complexes can present a daunting array of hazards, both for the staff operating within the facilities and for the emergency teams charged with first response.

The continued development of simulator technology can help to address these challenges by providing realistic, hands-on training opportunities that replicate real-life conditions.

This article was originally published in the Argon Electronics website.

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About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a world leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators.

In use worldwide, Argon simulators have applications for training and preparedness within civil response, the military, EoD, unconventional terrorism / accidental release, and international treaty verification, with a growing presence in the nuclear energy generation and education markets. We have been granted a number of international patents in this field.

United States: EPA Soliciting Comments On BUILD Act

Article by Phillip E. Hoover and Vickie C. RusekSmith Gambrell & Russell LLP

The Environmental Protection Agency is seeking to streamline the cleanup and reuse of National Priorities List sites with an emphasis on private party participation and private investment. NPL site designation was once a popular way for affected communities to secure federal funding for remediation, but the program has long suffered from lack of funding. Now, the Trump administration seeks to streamline the delisting of NPL sites in the same manner as the redevelopment of brownfields. One example of this initiative is the Brownfields Utilization, Investment and Local Development (BUILD) Act, which was enacted on March 23, 2018, and reauthorizes EPA’s Brownfields program at current funding levels through 2023. EPA is currently developing policy guidance to implement the BUILD Act, and is soliciting comment on three of the Act’s provisions: (1) the authority to increase the per-site cleanup grant amounts to $500,000; (2) the new multi-purpose grant authority; and (3) the new small community assistance grant authority. Click here for more information about these provisions and submitting comments to EPA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

This article was first published on the Smith, Gambrell & Russell LLP website.

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About the Authors

Phillip E. Hoover is a Partner in the Environmental and Sustainability Practice Areas of Smith, Gambrell & Russell, LLP.  Mr. Hoover’s practice includes providing counsel on numerous environmental regulatory matters, as well as the redevelopment of environmentally impacted properties. These include state and federal superfund sites, corporate mergers and acquisitions of such properties. His environmental experience includes representation of Potentially Responsible Parties at superfund sites. He has negotiated RCRA permits and corrective action plans on behalf of clients in various states.

Vickie Chung Rusek is an Associate in the Environmental Practice of Smith, Gambrell & Russell, LLP. Ms. Rusek represents clients in all aspects of environmental compliance, enforcement, permitting, and litigation, including Superfund cleanups, Resource Conservation Recovery Act compliance, Clean Air Act and Clean Water Act permitting and compliance, and environmental tort litigation.

Nova Scotia Announces Plan to Assess Contaminated Site in Halifax

The Nova Scotia government recently announced that it is taking the first steps to determine what’s needed to remediate a former construction and demolition site in Harrietsfield, Halifax Regional Municipality.

Homemade signs line the road to Harrietsfield, N.S., on May 14, 2018.

Signs of the water contamination issue in Harrietsfield, Nova Scotia. (Alexa MacLean/Global News)

Nova Scotia Lands Inc. will commission a site assessment this summer to determine the extent of contamination, how long it will take to remediate and how much it will cost.  It will also determine the condition of the existing infrastructure and evaluate what potential impacts the remediation might have. The cost of the assessment is about $250,000.

“This site has been a problem for the community for far too long. We’re taking an important and necessary action to address it,” said Environment Minister Iain Rankin.

Two ministerial orders were issued in 2016, ordering the companies to assess the contamination that was impacting residents’ wells and submit a plan to remediate it. Those orders have not been followed.

Mr. Rankin has invoked his authority under the Environment Act to ensure those orders are carried out.

Under the act, the minister also has the authority to hold the former operators of the site responsible for the costs of remediation.

“We will pursue all available options,” said Mr. Rankin.

In 2016, the province had water treatment facilities installed at eight area homes where there was evidence that well water was being impacted by contamination at this facility.

A court case is ongoing against two companies that operated the former RDM Recycling site between 2002 and 2013. The site assessment will not impact the court case. The last court date was in late June.

RDM Recycling Plant, Harrietsfield, Nova Scotia (Photo Credit: CBC)

The Commodification of Phase I ESA’s and the Need for Innovation

Introduction

Individuals who read environmental site assessments (“ESAs”) in the early 1990’s as part of their job will likely remember the unevenness of recommendations and conclusions and the wide range in the quality of reporting.  During that time, as an in-house environmental engineer at a major law firm, I likely read more ESA reports from more environmental consulting firms than I care to remember.  To this day I still read my fair share of ESA reports from various consultants as part of my job.

Standardization

In the 1990’s there was a growing demand from users of ESA reports for some form of standardization.  Back then, and to this day, a potential buyer of a property and the associated lender used an ESA report to aide in determining the monetary risk associated with any environmental liabilities linked to a property.  The wide variety of styles, coverage, disclaimers, recommendations, and conclusions in ESA reports back in the early 1990’s made that task very hard.

More than one consultant in the 1990’s would try to absolve themselves of liability by merely stating the findings of the investigation and avoiding any recommendation or conclusions.  Others would include disclaimers that would essentially hold them blameless for all errors and or omissions.

The first standardized ESA reports that came across my desk conformed with the United States ASTM E1527 standard published in 1993.  The first Canadian ESA standard (Z768) was issued in 1994 by the Standard Council of Canada.

In Canada, the latest version of the CSA Z768 standard is what is used as starting point for conducting Phase I ESA’s.  A vast majority of ESA reports that I read begin quoting the CSA standard but with the added qualifying statement that the report is in “substantial conformance” with the standard.

Commodity

Currently, many of the major lenders in Canada have lists of approved consultants for ESA’s.  Any borrower can choose freely from the list and arrange for an ESA on a property.  Other organizations have similar lists.

The CSA Z768 standard combined with the lists of qualified consultants typically supplied by lending institutions has created, in my opinion, a commodification of Phase I ESA’s.  An unsophisticated and occasional user of environmental services would most likely choose a consultant to conduct a Phase I ESA based on price.

Sophisticated buyers of environmental services have their own favourite consultants.  To earn the trust of a regular user of ESA services, a consultant needs to be able provide a clear explanation of environmental liabilities and a strong justification for the need further investigation (i.e., Phase II ESA).  The exemplary consultant has the ability to uncover the less than obvious environmental liabilities.  All trusted consultants provide timely report in a cost-effective manner.

The advantage of the sophisticated buyers of ESA services is the experience gained from reading reports from dozens of different firms and knowledge of the revelations and oversights of each.  Even amongst sophisticated buyers, there is a level of commodification that exists as they would likely have anywhere from 4 to 5 firms (any maybe more) that they trust to do good work.

Differentiation

When being sold environmental services from consultants, I typically ask a consultant what differentiates them from their competitors with respect tot the conduct of a Phase I ESA.  In essence, I want them to articulate to me how their ESA work is superior to the competition.  The typical list of replies can be found in the table below.  Based on the majority of responses I receive, it is my conclusion that the consultants themselves are unknowingly conceding that they are selling a commodity service.  The differentiators they describe can apply to almost any firm that provides the service.

Table 1: Common Reasons Cited by Environmental Consultants for Choosing Them

“Cost effective”

“better”
“Fast turn-around time” “more effective”
“Use only experienced assessors” “more thorough”
“Experienced reviewers and supervising Staff”

“quality controls”

Innovation

So how can a consulting firm give clients what they want – more certainty on risk associated with a property – and differentiate the ESA service they provide?

I have found one consultant that I now work with has risen above the commodity Phase I ESA.  This consulting firm, through innovation, has gone beyond the bare minimum of a Phase I ESA that would conform to the CSA Standard and utilized technology to enhance the Phase I ESA.

A standard Phase I ESA requires only observation as part of the site visit portion of the ESA.  The use of intrusive testing is saved for a Phase II.  However, with the utilization of field instrumentation that is non-intrusive, an enhanced Phase I can provide much more information that a standard Phase I ESA.

The environmental consulting firm, Altech Consulting Group, uses magnetic surveys as a standard part of the its Phase I ESAs.  A magnetometer measures the magnetic potential underground through non-obtrusive means.  It can identify the presence of underground steel tanks or drums, and other ferrous buried objects (i.e. pipes).

Enhanced Phase I ESA – Seeing underground with the magnetic survey

By including a magnetic survey as a standard part of a Phase I ESA, Altech has more information from which to base its conclusions and recommendations.  It can utilize the information found from the magnetic survey along with historical data and interviews with persons knowledgeable of the property to have a stronger argument for the need for a Phase II ESA or not.

Chad Stewart, the head of the environmental investigation group at Altech stated “one of the biggest sources of environmental liability at the majority of sites is leaks from underground storage tanks or pipelines.  By including a magnetic survey as part of our Phase I ESA, we are in a much better position to state if further intrusive investigation is required.  Our approach saves the client time and money.”

As I said earlier, I have seen my share of ESA reports from numerous consultants.  Their a some that are very quick to recommend a Phase II ESA based on the limited information that only hints that a UST may have been present.  A vast majority of the subsequent Phase II findings reveal that there is no contamination.

Any means of bringing non-intrusive testing and measurement techniques into use for a standard Phase I ESA is a good thing in my opinion.  The more information that can be obtained during the Phase I ESA, the better the decision making on the need for a Phase II.

By not having to perform an unnecessary Phase II ESA, a client could save tens of thousands of dollars.  By performing a Phase II ESA based on information obtained from a magnetic survey that is a standard part of a Phase I ESA, a client could potentially save hundreds of thousands of dollars.

Tracking brownfield redevelopment outcomes using Ontario’s RSCs

By David Nguyen, staff writer, Hazmat Management Magazine

GeoEnviroPro’s latest webinar event featured Dr. Christopher De Sousa, a professor and director of the School of Urban and Regional Planning at Ryerson University.  He spoke about his research using record of site conditions (RSCs) to track brownfield developments in Ontario.

Christopher De Sousa.BA, MScPL, PhD (Associate Professor, Ryerson University)

A RSC is typically filed on the Environmental Site Registry with the Ontario Ministry of the Environment and Climate Change (MOECC) after property has undergone a Phase I, and often a Phase II Environmental Site Assessment (ESA) and the property is undergoing a zoning change to a more sensitive land use (i.e., industrial to residential).  A record of site condition summarizes the environmental condition of a property, based on the completion of ESAs.

De Sousa’s research focussed on the effects of the RCS legislation since its introduction in 2004, focussing on the scale and value of projects using RSCs from 2004 to 2015 (noting the revisions to the RSC legislation in 2011).  Property Assessments and Tax information was used to determine the nature of the developments that have occurred on brownfields.  Private sector stakeholders were interviewed to determine the factors that influence private sectors to develop on brownfields.

The research showed that from 2004 – 2015, 31% of RSCs were filed for Toronto properties.  However, the cities with the greatest total area redeveloped (based on RSC filings) were Brampton and Vaughn, with Toronto having the third largest total area redeveloped. With the exception of Ottawa, projects requiring RSCs occurred primarily in the greater Toronto and Hamilton area.

Of the RSCs filed from 2004 – 2015, 24% consisted of only Phase I environmental site assessments (ESA), 69% consisted of a generic Phase I and II ESAs, and 7% used a Phase I and II ESA combined with a site specific risk assessment.

With land use changes, the most common previous land use was commercial (36.8%) followed by industrial (22.3%) and the most common intended land use was residential (67.5%) followed by commercial (14.9%).

Toronto’s development focussed on residential projects located near major transit and roadways (85.6% of which being condos).  Smaller municipalities like Waterloo and Kingston also primarily developed residential properties (31% and 58%, respectively).  De Sousa notes that provincial growth plans and community improvement plans can help municipalities be more proactive in housing and economic development goals.

From a private sector perspective, the main motivations for brownfield developments are based on real estate factors (profit, market, locations), with barriers being costs, liabilities, and time (in project reviews and approvals).

Facilitation strategies that governments can utilize involve financial and regulatory changes, particularly in more effective and efficient processes and tools in high priority areas, with perhaps more government intervening regulations in secondary/ weaker markets to encourage development of brownfields vs. greenfields.

Toronto’s Port Lands feature numerous brownfields sites, image by Marcus Mitanis

Largest Clean-up Grant in Canadian History

As reported by Laura Osman of the CBC, Councillors on Ottawa’s finance committee unanimously approved a $60-million grant to clean up contaminants to make way for a massive new development on Chaudière and Albert islands.

Windmill Development Group applied for the grant for its mixed-use Zibi project.

Windmill will clear the contaminated soil on the site, which has historically been used as an industrial site, and demolish a number of buildings.

An artist’s rendering of the Zibi development, which could receive a substantial grant from the city for soil and building cleanup. (City of Ottawa)

“These are contaminated lands on a derelict site in the city’s urban core,” said Lee Ann Snedden, director of Ottawa’s planning services.

“This truly is a poster child for a brownfield grant.

The city’s brownfields redevelopment program awards funds to developers for cleaning up contaminated sites and deteriorating buildings, which helps encourage developers to build in the core rather than the suburbs.

The grant would pay for half of the total projected cost of the cleanup.

Windmill has promised to create a $1.2 billion environmentally friendly community with condos, shops, offices, waterfront parks and pathways on the 15-hectare site, which spans both the Quebec and Ontario sides of the Ottawa River.

The city will only pay for the actual costs of cleanup after the invoices have been verified, Mayor Jim Watson said.

The developer promised to only do the work if they find contamination is present.

“It would be fantastic news for us as the proponent if there’s less contaminants there,” said Jeff Westeinde with Windmill Development Group.

The developer hopes to have the Ottawa part of the development completed in seven or eight years.

Snedden pointed out the city will not  pay to clean up the nearby LeBreton land to allow development because the land is controlled by the federal government.

But the National Capital Commission technically owned about 20 per cent of the Zibi development lands as well said Coun. Catherine McKenney, who argued the federal government should contribute to the cleanup costs.

The NCC owned the lands and had a perpetual lease with Domtar, which operated a paper-mill on the site for nearly 100 years.

“So why are we paying the cost?” asked Peter Stockdale with the Fairlea Community Association.

Some councillors received letters from constituents concerned about the large amount of money going toward a money-making venture.

Capital ward Coun. David Chernushenko acknowledged the grant was “staggeringly” large, but said someone must be responsible for cleaning up contaminated sites.

“I don’t see this as some sort of corporate welfare,” he said.

The grant will still need to be approved by city council.

Chaudière and Victoria islands seen from the air above the Quebec side.

Despite Efforts to Roll-Back Other Program Requirements, U.S. EPA Administrator Scott Pruitt Continues to Prioritize Superfund Cleanups

by Van P. Hilderbrand, Jr. and Marian C. Hwang

 

 

U.S. Environmental Protection Agency (“EPA”) Administrator Scott Pruitt has made it clear that one of his top priorities during his tenure is to expedite cleanups at contaminated sites across the country. To achieve this goal while facing potential budget cuts, he has made several significant decisions over the last year to overhaul and restructure the Superfund cleanup program from within.

First, as we discussed in our earlier post, A New Budget, a New EPA Administrator, and New Uncertainty for Superfund Cleanups, Administrator Pruitt issued a memorandum on May 9, 2017 centralizing decision-making on major Superfund remedies to EPA headquarters. Specifically, final decisions on remedies exceeding $50 million are to be made by Administrator Pruitt or the Deputy Administrator, not by Regional Administrators. According to the memorandum, this change is designed to improve the remedy selection process by promoting increased oversight and accountability and by “enhancing consistency in remedy selection across states and the regions.”

Next, Administrator Pruitt specially convened an EPA Superfund Task Force on May 22, 2017. In our post, EPA’s Task Force Recommendations to Revamp and Expedite Superfund Cleanups and Process – A Welcome Change, we discussed the Task Force Report, issued on July 22, 2017, which identified 5 goals, 13 strategies, and 42 recommendations to (1) expedite Superfund cleanups; (2) re-invigorate responsible party cleanup and reuse; (3) encourage private investment; (4) promote redevelopment and community revitalization; and (5) engage partners and stakeholders. We have seen many of these recommendations realized, including the development and issuance of a priority list of Superfund sites targeted for immediate attention by Administrator Pruitt.

Recent EPA Realignment in Approval Process Sees the Administrator’s Role Expanding

Composite image map showing TRI facilities in blue and Superfund NPL sites in red

In a recent shift to expand the influence of the Administrator’s Office, Administrator Pruitt issued a second memorandum on April 26, 2018 clarifying that EPA’s Office of Land & Emergency Management and regional offices should “coordinate and consult with the Administrator’s Office early on when developing” other significant actions (in addition to remedies) related to costly Superfund cleanups. Such actions would include Amendments to Records of Decision (“ROD”) or Explanations of Significant Differences (“ESD”) that are projected to either increase the estimated cost of a remedy to greater than $50 million or are projected to increase the estimated cost of a remedy that is already greater than $50 million by any amount.

The memorandum also specifically notes that consultations should occur when developing Non-Time-Critical Removal Actions (“NTCRA”) estimated to exceed $50 million. As in the earlier 2017 memorandum, Administrator Pruitt says the additional coordination and cooperation will result in “more accountability and consistency throughout the EPA’s regions.” What this means for potentially responsible parties (“PRPs”) at large Superfund sites is that Administrator Pruitt will play an increasingly important role in the decision-making process.

Neither memorandum addressed any change in the role of the National Remedy Review Board (“NRRB”) and the interplay between the NRRB and the increasing oversight and decision-making role of Administrator Pruitt. The NRRB is an internal EPA peer review group that reviews and comments on remedial actions and NTCRAs costing more than $25 million. Questions remain whether the NRRB only reviews actions costing between $25 and $50 million, as not to impede Administrator Pruitt’s review, or do both NRRB and Administrator Pruitt review actions costing in excess of $50 million?

Uncertainty in the Superfund Program

This step comes amid increased turmoil and uncertainty in the Administrator’s Office and the Superfund program. Administrator Pruitt’s top advisor on the Superfund program and chairman of the Superfund Task Force, Albert “Kell” Kelly, resigned unexpectedly in early May, leaving questions regarding who will run the approximately $1 billion program. Further, Administrator Pruitt himself is facing numerous investigations into his own actions and ethical violations; causing many to wonder just how much longer he will be in his current job and whether he will see any of these policy changes implemented.

It is easy to see, therefore, why every decision from the Administrator’s Office comes under significant scrutiny. Many opponents believe these moves are simply ways to reduce costs and time in the cleanup process, and they question whether “expedited” cleanups actually mean less rigorous cleanups. In his first year or so, there are examples where Administrator Pruitt has approved strengthened measures and cleanup requirements at some sites, despite pushback from industry and companies involved in the cleanup, but there are also examples of site decisions that cast doubt on his ability to be independent and impartial. In any case, as long as Administrator Pruitt is in his current role, it is clear that the Superfund program will see continued change and that he will use the authority of that role to expedite cleanups.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

This story is was first published on the Miles Stockbridge website.

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About the authors

member of Miles & Stockbridge Products Liability & Mass Torts Practice Group, Van P. Hilderbrand, Jr. focuses his practice on environmental litigation, regulatory compliance issues, and advising on the environmental aspects of business and real estate transactions. His work also includes consulting on renewable energy project development and project finance transactions, conducting due diligence and assisting with permitting issues. He represents clients in a wide range of industries, including energy, manufacturing, consumer products, pharmaceuticals, chemicals, transportation, technology and real estate.

Marian Hwang has been an environmental attorney with the Miles & Stockbridge since 1987 and chairs its Environmental Practice. The breadth of her experiences representing multinational and national clients enables her to develop practical solutions to complex issues, whether involving complicated real estate/corporate acquisitions or divestitures or commercial financing matters to complex multi-defendant toxic tort claims, litigation, and multi-facility compliance matters. Marian works extensively with and appears before Federal and State regulators, and courts, has been certified as a LEED Green Associate by the U.S. Green Building Council, and has served as outside national environmental counsel to the firm’s major clients.

 

Weather Stations for Public Safety/Emergency Management

Presented by WeatherHawk

To help contain natural disasters or man-made ones, firefighters, police, emergency medical workers, and government officials must track conditions in the vicinity of an emergency. WeatherHawk weather stations can be a vital part of modern public safety equipment and can be set-up on site in less than 15 minutes by one responder wearing full protective equipment.

WeatherHawk meets the requirements of first responders with a cost-effective, easy-to-use weather monitoring and data logging system.  Available at preferred Federal Government pricing under EPA BPA #EP09W000552.

 

WeatherHawk-Pro software is CAMEO/ALOHA compliant (NOTE: Specify 2 sec scan update program at the time of order).

WeatherHawk is lightweight and portable, so it’s easy to move into remote or treacherous areas.

WeatherHawk doesn’t need to be placed near a power source because the system is battery powered and can operate for up to 4 days without an external power source. An optional solar panel enables unlimited operation in remote areas or where electrical power is not available.

The wireless WeatherHawk can operate independently at a distance of a line-of-sight range up to ½ mile from the base computer, ensuring the safety of personnel. Optional high gain directional antennas can increase that range to over 7 miles under most conditions.

Portability, quick installation, rugged construction, automatic data storage, and Internet compatibility make WeatherHawk the choice for first responders with limited equipment budgets and minimal time to train on special equipment.  Save property, save lives. Choose WeatherHawk for your weather station needs.